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anand das (service)     18 November 2010

Law governing 'Will's

1. What law governs 'Will' ?

2. Which properties can be mentioned in a 'WILL'- self acquired or ancestarl property?

3 What is are essentials for drafting a 'Will'?

3. What is the procedure for execution of a 'will' when it's writer dies ? 

Pls guide.


 1 Replies

raj kumar ji (LAW STUDENT )     18 November 2010

dear anand ji .

Appendix R

(Refers to Para 18 of Part II)



1. All Wills should be clear-cut unambiguous and precise. Please refer to AO 4/91.

2. An Executor can be a beneficiary under the Will.

3. Witnesses cannot be beneficiaries under the Will.

4. All Wills are revocable. However, in case of revoking any Will especially so a registered

Will it should be clearly stated in the latest Will that, All previous Wills, whether registered or

un-registered, whatsoever and wherever, stand revoked and cancelled. This will avoid any


5. It should be noted that a registered Will takes precedence over an un-registered Will. Hence

in case of any revocation or alteration of an earlier Will, the latest Will must be registered.

6. Probate is mandatory for immovable properties situated in West Bengal, Pondicherry,

Chennai and Mumbai. The Executor of the Will has to apply for the probate in the courts

concerned in these States.

7. Probate is not necessary in other States of India, especially so if the Will is a valid

registered document.

Choice of an Executor

8. Execution of any Will rests with the Executor of the Will. Hence it is imperative that the

executor be an honest, trustworthy and reliable person.

9. It is advisable to have a younger person in good health as an Executor, to try and ensure

that he/she does not pre-decease the Testator of the Will. To avoid such an eventuality, an

Alternative Executor may also be appointed in any Will.

10. It is advisable to appoint a reliable lawyer as an Executor, in case the property has to be

divided amongst different heirs, or if a Will gives only life interest to any one person and thereafter

the ownership rights vest with someone else.

11. The Executor must know the contents of the Will and be will and be willing to execute the

Will according to the wishes of the Testator.

12. The Executor must be a resident of the same town as the Testator, to enable him to execute

the concerned Will, legally and expeditiously.

Choice of Witnesses

13. Witnesses need not know the contents of the Will, but they must be present at the time with

the Testator and all of them must sign the Will in the presence of each other.

14. Beneficiaries cannot be Witnesses to any Will.

15. Witnesses should preferably be younger to the Testator, of sound integrity and good

financial position, to ensure that they cannot be bought overby any disgruntled beneficiary or


16. Witness should also be permanent residents of the same town as the Testator, so that they

can easily give evidence in Court, if so required.

Contents of a Will

17. `It is advisable Not to disclose the contents of a Will to the beneficiaries. Such disclosure

generally leads to un-necessary arguments, and harassment of the Testator.


18. It has been observed that the tendency to treat the elderly dependents with a degree of

callousness, is becoming rampant in our society today. It is therefore advisable that the Testator of

WILL makes full provisions for financial independence for self and spouse while executing a Will.


Will Execution: the Common Law Elements of the Wills Act Formalities



To execute a valid will means to perform everything that is necessary to conform to the requirements of the law—often called the Wills Act formalities—so that it will have the effect intended. In years past, most jurisdictions followed the common law that required strict compliance, but the modern trend is to follow the testator's intent as well as possible, and not allow correctable or harmless errors to invalidate a will.

The Wills Act formalities serve 4 main purposes:

  1. to serve as evidence that the document is, indeed, the testator's last will and testament;
  2. that the ritual of following the requirements will alert the testator that it is an important document and, thus, should be given careful consideration;
  3. to prevent fraud since it will be more difficult to alter it without leaving evidence of tampering;
  4. channeling the testator to consult an attorney to execute a will, since any mistakes may invalidate the will, causing the testator's property to fall under intestacy.

A properly executed will has 3 fundamental requirements:

  1. the will itself,
  2. signing,
  3. attestation.

Each requirement has further requirements in that it must be done in a specified way, especially the signing, and the attestation.


The will must be in writing. Oral wills—also known as nuncupative wills—are not permitted in most states, even if the testator is videotaped, although the videotape can supply evidence of the testator's intent and mental capacity or to explain the gift distribution to relatives. In those states where oral wills are recognized, there are strict requirements, such as the prospect of imminent death when the testator had no time to execute a traditional will and there would have to be strong evidence as to the contents of the will, since an oral will would be an easy target for fraud.

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